Excerpt:.....penal code - section 304--part ii, 147 & 148--name of accused no 5 not mentioned in second dying declaration--held, lower court was not justified to place conviction on it--conviction set aside.;appeals decided accordingly - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of.....c. honniah, c.j.1. on october 20, 1974 deceased jabar khan along with his son chhote khan (p.w 1), rama (p,w. 2), deva (p.w. 3) and abdul rehaman (p.w. 4) was coming from the side of akhesagar tank in the afternoon. when they came near the platform of bhercnji. all the accused armed with deadly weapons attacked jabar khan and in flirted injuries on him. on the next day jabar khan died. in support of its case the prosecution relied upon the evidence of chhote khan (p.w. 1), rama (p.w. 2), deva (p.w. 3) and abdul rehman (pw. 4), and the dying declaration of jabar khan. (p w. 1) to (p. w. 4) did not support the case of the prosecution. the learned judge relying upon the dying declarations convicted the accused under section 304, part 11, and sections 147 and 148, indian penal code, and.....

Judgment:

C. Honniah, C.J.

1. On October 20, 1974 deceased Jabar Khan along with his son Chhote Khan (P.W 1), Rama (P,W. 2), Deva (P.W. 3) and Abdul Rehaman (P.W. 4) was coming from the side of Akhesagar tank in the afternoon. When they came near the platform of Bhercnji. all the accused armed with deadly weapons attacked Jabar Khan and in flirted injuries on him. On the next day Jabar Khan died. In support of its case the prosecution relied upon the evidence of Chhote Khan (P.W. 1), Rama (P.W. 2), Deva (P.W. 3) and Abdul Rehman (PW. 4), and the dying declaration of Jabar Khan. (P W. 1) to (P. W. 4) did not support the case of the prosecution. The learned Judge relying upon the dying declarations convicted the accused under Section 304, Part 11, and Sections 147 and 148, Indian Penal Code, and sentenced them to various terms of imprisonment, the maximum being five years. There is consistent evidence that the deceased made two statements before his death implicating the appellants Nos. 1 to 4, and 6, therefore, the conviction passed against them, in my opinion, cannot be interfered with So far as the sentence is concerned, they have undergone various terms of imprisonment and in toy opinion, it is sufficient to meet the ends of justice.

2. Accordingly, I reduce the sentence of appellants Nos. 1 to 4 and 6 to the period already under gone by them. I am told that the appellant No. 1 is in jail, & I direct that he be set at liberty forthwith.

3. So far as appellant No. 5 is concerned, the only part attributed by the deceased to him was that he instigated the other accused to attack Jabar Khan, No doubt the deceased, in the first dying declaration implicated him but in the second dying declaration he did not implicate him, therefore, the learned Judge was not justified in basing conviction against the appellant No. 5. I, therefore, set aside the conviction and sentence passed against him and acquit him.

4. In the result, the appeal of appellant No. 5 Shahi Mohammed is allowed, and the appeal of other appellants is dismissed with motifi-cation in sentence.